Dan Shefet is a well-recognized lawyer from Paris, France, and an Advisor to the Council of Europe on the Internet Ombudsman. Mr.Shefet successfully represents Yulia Lovochkina in a «political» case in France. There, Ukrainian MP Vadym Rabinovych claims to represent the State of Ukraine in order to seize Lovochkin companies’ property. Ukrainian News spoke on the details of this high-profile case with Mr.Shefet in exclusivity.
The decision of the Court of Nice, which states Ukrainian MP Vadym Rabinovych has misrepresented himself when claiming he was acting on behalf of the country, has made waves in Ukraine. So what were the challenges of this case?
What we need to do is to start off with a statement of principle. It would be wrong for me as a lawyer and as a citizen in a democratic country to try cases in the media. I try cases before judges and I respect the importance of the judiciary and democratic institutions. So to the extent that I will answer your questions these answers will be very abstract and general.
I shall not mention names that would be wrong. We are not going to engage at the same level of debate as our opponent.
As for the challenges: our French judiciary - though it could be in any other country, but now it’s France - finds itself hijacked in a clash between politicians in other countries. This clash has been “exported” to France. The debates should take place in your country in a democratic way. It should not be exported to France.
Mr. Rabinovich announced in February 2018, that French court seized the property of Lovochkin family’s companies. What was the basis for this case?
The procedural basis for this case is a special French remedy which we call an interlocutory injunction (before filing the case on the merits). This means that under certain conditions a swift provisional court order could be obtained allowing the plaintiff to secure his rights against the defendant in case where is a qualified suspicion or risk that the defendant may escape, flee the country or move his assets to another country thereby depriving the plaintiff of true relief should he wins the case on the merits later. It is important to understand that it is not a judgment. It is merely a provisional court order and it does not reflect a review of the merits of the purported claim. It does not express any decision as to whether the claim is justified or not.
How does one receive such an interlocutory injunction?
All you have to do is to present a request to the judge arguing that you believe you may have a claim against a given plaintiff. It is important that the defendant does not know that such a request has been presented to the judge.
In our case it is important to realize that neither our client, nor we as the lawyers were advised or knew anything about this secret, I strike the word, “secret”, procedure.
How widespread is the procedure? Why is this order so easy to obtain in France?
Very often, I don’t have the exact statistics, but it’s probably more then 60% the judge accepts to give the order. I have myself produced requests for such orders. Practically as a lawyer what you do is to present whatever evidence you have (often superficial) and then you actually type out the court order requested along the following lines: "We request approval of the enclosed order on the basis of the evidence submitted".
As you remember the defendant does not know anything about the request submitted. And very-very often a lawyer obtains such an order because all the judge knows is the information from the request.
I stress there was no case on the merits, no defendant and evidence. All all we had was the “secret” provisional court order posted by the plaintiff in social media and the press.
To the extent the provisional court order has been portrayed in Ukraine - as a court decision on the merits - that is wrong. It amounts to misrepresentation of the facts and legal effects of the court order and should not be accepted.
And what was your legal arguments in this case?
When we learned about this secret procedure at that time our remedy was to challenge the court order before the same judge who rendered it. This is not an appeal since it’s not a judgment but just a provisional order. Therefore there is no appeal but a simple request for retraction.
In our case the plaintiff claimed that he was invested with authority to represent the Ukrainian state and the Ukrainian people.
This question had already been decided by the Constitutional Court of Ukraine stating that a MP only has the right to represent the People or the State within the framework of his parliamentary work and representing the People or the State in foreign courts does not fall within that framework.
That does not surprise me as an international lawyer. It did not surprise the French judge either because that is the principle we have in all democratic countries. An MP cannot represent the Country, the State or the People either by signing treaties in their name or by acting in foreign count in the name of those plaintiffs.
How many MPs are there in Ukrainian Parliament?
450.
Imagine if 450 MPs could each of them enter into treaties with other countries, take legal action on behalf of the State or the People of Ukraine in other countries. Just imagine that. You could be confronted with situations where MPs would be suing each other in the name of the People of Ukraine before the same jurisdictions in France, in Holland etc.
Therefore, the court order that allowed the seizure of the property was lifted and as a consequence of that the liens that were registered must be de-registered. This means that the registration costs are forfeited and additionally costs for de-registration of the liens must be settled. This is pretty onerous.
The amount paid to register the liens is about EUR 400 000. Does that go the French budget?
Let’s call it registration tax and yes, it goes to the French state.
Are there any other payments involved?
In addition to the defendant has the right to seek damages and I believe I will get instructions to that effect from my clients. What everyone should understand is that countries that recognize this procedure of interlocutory judgments (i.e. secret obtaining a court order of a provisional nature) there is a reciprocal remedy of damages of the defendant once the order is made known to him. That is why there is a balance in the system and most people don’t present petitions for such court orders unless they have a substantial case on the merits.
In our case I can say we have no information as to any case on the merits and that is of course very strange. It could lead us to the theory that, and I stress, "theory", that obtaining the court order was the purpose in itself.
In such case it’s very serious because it would amount to instrumentalizing the judiciary of another country in order to create fake news with a view to manipulate the electorate of your own country.
It is a fact that today your reputation is very often destroyed for life on the Internet. For this reason I made a proposal to the Minister of Justice of France to amend french law. In the event a court order is believed to be solely maintained with the purpose of influencing the electoral process in another country a gag order should be attached to the said court order. This means that if the press wishes to relate the story for one of the political parties or politicians it will be an offense to disclose the names of the parties.
The plaintiff (Vadym Rabinovych) says he has already appealed.
He is trying to obtain a decision that will suspend the effect of the retraction judgment. This would allow him to maintain the liens until he starts the case on the merits. There’s a technical problem with this, which I cannot tell you more about in this interview because that would be disclosing our strategy.
The money that has already been paid goes to the French state, but there are certain amounts, like fees and damages that were already assessed by the court. What happens if they are not paid?
The tax has already been paid. It is paid when you register the lien so, what remains now - pending the decision on suspension which I mentioned before - is the de-registration tax. I think that amount will probably be about EUR 75 000—100 000. That’s the tax part.
In terms of damages, as I said before, we will do what we have to do in order to obtain such damages, absolutely. The damages will be substantial because of the significant loss of reputation.
What happens if the plaintiff does not pay?
Again, this is a theoretical question. If we obtain a judgment that damages are awarded in the amount of XXX, such a judgment will be enforceable under international treaties. This means that is could be enforced for instance in Kiev by sending it to a local court. They will then seize assets if the plaintiff does not pay.
The plaintiff has been very active in media in disseminating his interpretation of the events. You are one of the leading experts on fake news and combatting them. Does the defendant (Lovochkins’ family) plan to take any other steps besides the ones you have mentioned? For instance, would the fake information on internet be taken down?
The answer to your questions is yes. We have taken such steps. Some articles containing fake facts have already been taken down.
We started by discussing whether the goal of this court order might have been the order in itself. If that was to happen in the EU, for instance if a French politician has misrepresented himself this way, what would be the reaction to that?
This could be very serious. It could have serous consequences:
- if the lawyer were to misrepresent the effects of the order he could encounter severe problems with the law society;
- if one of parties of the case were to misrepresent the legal effect of the case, like blackmailing someone or putting someone in a position where their reputation could be harmed or by influencing other people, that could amount to contempt of court.
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